The judge noted that the evidence of one of the sons who was marked as a hostile witness would have pointed at the perpetrator.
“This fact could have been clarified had the fourth witness not given two contradicting versions of the incident,” Waweru said.
The charge sheet says that on August 7, 2017, at Nangoga village, Mudoma, Busia county, murdered Elizabeth Khakai.
On the said day, the prosecution alleges that after a disagreement with the deceased, the accused doused her with a liquid and set her ablaze. She later succumbed to the injuries.
In his defence, the accused contended that at the time of the incident he was not at home. However, his three children stated otherwise.
The fourth witness, Barasa’s son, gave two contradicting accounts of what had transpired.
In court, he testified that he arrived home from school at about 7pm and found both his parents at home. He testified that his mother had set herself ablaze.
“At about 8pm, my father shouted for help and alleged that the deceased had burnt herself,” he told the court.
In his statement to the police, however, he claimed his mother said that it was the accused who poured paraffin on her and set her on fire.
He had recorded that when the deceased was screaming, the accused was armed with a slasher and he prevented them from going near the deceased.
The son also recorded that his father warned him that he would be the next victim to die.
He alluded to a disagreement between his parents over a cow that the mother had allegedly sold without consulting his father.
When questioned further in court, he admitted that he had told the police a different story. Court marked him as unwilling to tell the truth.
Barasa’s daughter also gave two versions of the incident.
In her evidence-in-chief, she narrated in details, how she saw her father return home with two bottles of petrol. He then doused the deceased with petrol and set her ablaze.
She also told police that she was woken up by her mother’s screams when she was asking for help after she was already on fire.
“This witness is unreliable and that she deliberately lied either to the court or to the police,” Waweru noted.
“From the evidence of these family members, we cannot be able to know what really transpired”.
The judge said the issue was further complicated by the reaction of the deceased when she interacted with other independent witnesses.
In his evidence, Silas Oduori who is the area assistant chief said initially, the deceased declined to tell him what had happened. When she was informed that he was the area assistant chief, she implicated the accused.
“I want to assume she knew her area assistant chief. The question that went unanswered from the evidence is why she was hesitant. Is there a possibility that she was hesitant for she had set herself ablaze?” questioned the judge.
The judge proceeded to acquit the accused for lack of evidence to prove that he set his wife ablaze.